DENNIS WELLS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1986-03-27
No. 85-28
COBB, C.J., and SHARP, J., concur.
487 So. 2d 1101 Florida District Court of Appeal, Fifth District (1986) Positive Treatment
Cited by 18 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Attorney Dennis Wells appeals his conviction for direct criminal contempt after he exceeded a time limit imposed by the trial judge during closing argument. The Florida appellate court affirmed that Wells's conduct warranted a contempt finding but reversed because the trial court failed to follow procedural requirements under Florida Rule of Criminal Procedure 3.830.


Holding

The court held that although Wells's conduct was sufficient to warrant a direct criminal contempt finding and the trial judge properly exercised his discretion, the judgment must be reversed because it failed to comply with Rule 3.830's requirement that a contempt judgment include a written recital of the facts upon which guilt was adjudicated.


Headnotes

[1] Direct criminal contempt requires strict adherence to mandatory procedural steps outlined in Rule 3.830, Fla.R.Crim.P., to ensure due process.

[2] A trial court must inform a defendant of the accusation of direct criminal contempt and inquire as to any cause why they should not be adjudged guilty and sentenced.

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Key Quotes

“In finding direct criminal contempt, the trial judge is required to enter a judgment of guilt which "shall include a recital of those facts upon which the adjudication of guilt is based." Fla.R.Crim.P. 3.830.”

Establishes the mandatory procedural requirement that contempt judgments must include a factual recitation.

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Facts & Procedural History

Wells, an attorney representing a defendant in a criminal case, violated the trial judge's order limiting closing argument time. The trial judge immed…

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Opinion of the Court
ORFINGER, Judge.

ORFINGER, Judge.

Wells, the attorney for defendant in a criminal case, appeals a final judgment finding him guilty of direct criminal contempt 1 for failing to restrict closing argument to the time limit specifically ordered by the trial judge.2 The appellant contends that the judgment is erroneous because: 1) the trial judge should have granted his motion to recuse himself; 2) the trial court did not afford the appellant a sufficient evidentiary hearing; 3) appellant’s actions did not warrant a finding of contempt; 4) the trial judge did not follow the procedures outlined in Florida Rule of Criminal Procedure 3.830. Appellant’s first three points are without merit. However, we agree with the last point and reverse.

A direct criminal contempt occurring in the presence of a trial judge may be punished immediately and summarily. Sandstrom v. State, 402 So. 2d 461 (Fla. 4th DCA 1981), rev. denied, 412 So. 2d 470 (Fla.1982), habeas corpus affd on other grounds, sub. nom., Sandstrom v. Butterworth, 738 F. 2d 1200 (11th Cir.1984), cert. denied, - U.S. -, 105 S.Ct. 787, 83 L.Ed.2d 781 (1985). Under such circumstances, the trial judge need not disqualify himself unless he becomes personally embroiled in the conflict. Sandstrom, supra. This is not the situation here. Moreover, the conduct of counsel in refusing to comply with the court’s order was clearly of a character sufficient to warrant the finding of direct criminal contempt. See Wells v. State, 471 So. 2d 620 (Fla. 5th DCA), came dismissed, 478 So. 2d 54 (Fla.1985).

Although the appellant was informed of the accusations against him and given opportunity to respond, the judgment of criminal contempt provided in the record fails to include a recital of the underlying facts upon which adjudication of guilt was based.3 In finding direct criminal con tempt, the trial judge is required to enter a judgment of guilt which “shall include a recital of those facts upon which the adjudication of guilt is based.” Fla.R.Crim.P. 3.830. It is necessary that the procedures set out in this rule be followed in order to insure due process to the accused and failure to do so may result in reversal. Fisher v. State, 482 So. 2d 587 (Fla. 1st DCA 1986). The failure to recite in the judgment those facts upon which the adjudication of guilt was based, although a technical error, requires reversal. Osborne v. State, 430 So. 2d 551 (Fla.2d DCA 1983).

In the present case, the required written order reciting those facts upon which adjudication of guilt was based was not entered of record, and such an order is required to comply with the rule. Accordingly, the judgment is reversed and the cause is remanded for the entry of a judgment which complies with the requirements of Rule 3.830.

REVERSED and REMANDED.

COBB, C.J., and SHARP, J., concur. .Florida Rule of Criminal Procedure 3.830, entitled "Direct Criminal Contempt” reads:

A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court. The judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based. Prior to the adjudication of guilt the judge shall inform the defendant of the accusation against him and inquire as to whether he has any cause to show why he should not be adjudged guilty of contempt by the court and sentenced therefor. The defendant shall be given the opportunity to present evidence of excusing or mitigating circumstances. The judgment shall be signed by the judge and entered of record. Sentence shall be pronounced in open court.

. See Hickey v. State, 484 So. 2d 1271 (Fla. 5th DCA 1986) for a further discussion of the facts.

. The only judgment in the record which could conceivably comply with this portion of the rule adjudges appellant Wells in contempt for failure to comply with the trial court's order relating to cross-examination of witnesses. By a subsequent order, the trial court specifically vacated and set this judgment aside and despite several opportunities afforded by this court to the parties for supplementation of the record, we have not been supplied with any written judgment which recites a finding of direct criminal con tempt for failure to abide by the court’s instructions pertaining to closing argument. We can only assume that there is no such judgment.


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Citator

Cited By

  • Woods v. State, 600 So. 2d 27 (Fla. 4th DCA 1992)
    …to Florida Rule of Criminal Procedure 3.830, the judgment of contempt did not include a recital of the facts constituting the contempt, which while a technical error, requires a reversal and remand for the correction of the judgment. Wells v. State, 487 So. 2d 1101 (Fla. 5th DCA), cause dismissed, 491 So. 2d 281 (1986); Fisher v. State, 482 So. 2d 587 (Fla. 1st DCA 1986). The conviction and sentence for grand theft is reversed and remanded for further proceedings consistent with this opinion. The conviction a…
  • Schenck v. State, 645 So. 2d 71 (Fla. 4th DCA 1994)
    …ods v. State, 600 So. 2d 27 (Fla. 4th DCA 1992) (contempt judgment must include recital of facts constituting contempt); accord, Spivey v. State, 616 So. 2d 550 (Fla. 2d DCA 1993); Johnson v. State, 584 So. 2d 95 (Fla. 1st DCA 1991); Wells v. State, 487 So. 2d 1101 (Fla. 5th DCA), cause dism’d, 491 So. 2d 281 (Fla.1986); Tenorio v. State, 462 So. 2d 880 (Fla. 2d DCA 1985); Osborne v. State, 430 So. 2d 551 (Fla. 2d DCA 1983); Bay v. State, 352 So. 2d 110 (Fla. 1st DCA), cert. denied, 360 So. 2d 1250 (Fla.1977);…
  • Eldred Oates v. State, 619 So. 2d 23 (Fla. 4th DCA 1993)
    …nal contempt. Unless a trial judge becomes personally involved in the conflict (and this judge did not), disqualification is not required. Sandstrom v. State, 402 So. 2d 461 (Fla. 4th DCA1981), rev. denied, 412 So. 2d 470 (Fla.1982); Wells v. State, 487 So. 2d 1101 (Fla. 5th DCA), dismissed, 491 So. 2d 281 (Fla.1986). The fact that the court said defendant was “being an obstinate jerk” is more troubling. As Judge Letts stated in his concurring opinion in Hayslip v. Douglas, 400 So. 2d 553, 558 (Fla. 4th DCA19…

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